DENVER – What should be a simple case of government entities providing an easier format for already-allowed information under Colorado’s open records laws is becoming a muddied mess.
A news release went out Friday postponing a hearing on Senate Bill 17-40 before the Senate State, Veterans & Military Affairs committee for a second time this month.
The bill was scheduled to be heard Wednesday, but with legislators off Monday for President’s Day, the committee’s chairman, Sen. Ray Scott, (R-Grand Junction) said there was not enough time for both sides of the issue to sort out newly proposed amendments.
“They were still meeting with stake holders Friday, and we’re not going back until Tuesday,” Scott said by phone Saturday morning. “I’m trying to do my job. I could have just let the bill go forward and get killed. But I’m trying to give it a fair shot in committee.”
The bill would force government entities subject to the Colorado Open Records Act (CORA) to supply databases in the format they are created in.
For example, if the salaries of teachers within a school district were requested, and the district maintained the record in an Excel spreadsheet, under current law, the school district could sort the information one way, convert it to a PDF and supply that as the record. While the document would contain the yearly salary of every teacher, if not sorted by last name it could be time consuming in a large district for the person who requested the information to list the information in that order. Under the new law, the district would have to supply the request in its original Excel format, allowing the information to be manipulated more easily.
The hearing delays have caused a heated debate between Scott and Grand Junction Daily Sentinel newspaper Publisher Jay Seaton over claims of “fake news” and “libel.”
After Scott delayed the bill the first time, the Sentinel published an opinion that Scott said implied he was intentionally delaying the hearing to undermine updating the open records laws. Scott Tweeted out that it was “fake news” and the Sentinel is now threatening to sue for libel.
But some on both sides of the Senate Bill 40 debate agreed Saturday, Scott’s latest postponement was appropriate.
“At this point, it is probably valid,” said Shayne Madsen, who represents the Independence Institute, a free-market think tank in Denver and one of the many stakeholders in support of Senate Bill 40’s passage.*
Madsen said opponents were shopping around amendments to the bill all last week. She did not see the proposed changes – which may compromise the bill, she said – until Friday. By then it was too late. Nothing would be solved by the hearing date.
“There are problems with the bill,” Madsen said. “As of Friday there were no realistic conclusions to those. If I were Ray Scott, I would have postponed it too.”
Madsen said the delay will give both sides more time to try and find common ground.
It is specific software used by some that is an issue for opponents such as the University of Northern Colorado, whose officials maintain the language of the law would cost UNC thousands of dollars.
“It’s a resource issue for us,” said Nate Haas, spokesman for UNC. “The bill as written would require upfront and recurring costs surrounding data formatting that include purchasing equipment and hardware, data storage, and increased staff and increased staff time required to manage a separate database to comply with the law. As it is right now, because of resource limitations, we’re required to manage open records with staff whose primary responsibilities reside elsewhere.”
Scott said the Attorney General’s office is worried about metadata – or data that might include prior changes and comments to a document – and other personally identifiable information being released inadvertently.
Scott said the bill as written was the same bill that has died in previous years.
“This is the same thing (Sen. John Kefalas, D-Fort Collins) has tried for three or four years in a row now,” Scott said. “But all he did was put a Band-Aid on it, and if we kill it, we catch hell for it.”
Kefalas is the bill’s sponsor.
Madsen said the original bill as written was thought to have the votes to pass. However, last-minute and cloudy amendments are forcing everyone back to the drawing table, and if an agreement isn’t reached, it’s likely to die again.
“I’m very sensitive to that issue,” Madsen said about personal identifying information, or PII. “There was nothing in the original bill that implicated PII. A lot of people worked on this over a long time. But the amendments have impacted the ability of the bill to be heard with a positive outcome.”
Madsen said it might be time to rethink who should be creating open records laws.
“Can open records and open meetings issues be handled by the legislature? Or are they issues that need to be handled at the ballot box?” Madsen said. “The public really supports transparency, so maybe that’s where it belongs, with the public.”
* Complete Colorado is a project of the Independence Institute.